Office for Civil Rights; Single-Sex Classes and Schools: Guidelines on Title IX Requirements

AGENCY: Department of Education.

ACTION: Guidelines on current title IX requirements related to single-sex classes and schools.

SUMMARY:
On January 8, 2002, the President signed into law the No Child Left Behind Act
of 2001, which reauthorized the Elementary and Secondary Act of 1965. Section
5131(a)(23) of the Elementary and Secondary Education Act allows local educational
agencies (LEAs) to use Innovative Programs funds to support same-gender schools
and classrooms consistent with applicable law. It also requires the Department,
within 120 days of enactment, to issue guidelines for LEAs regarding the applicable
law on single-sex classes and schools. This notice fully implements Congress's
mandate by describing and explaining the current statutory and regulatory requirements
relating to single-sex classes and schools.

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Team at (202) 205-5413 or 1-800-421-3481. These Guidelines will also be available
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SUPPLEMENTARY INFORMATION: This notice implements Congress's mandate in the No Child Left Behind Act of 2001 (NCLB Act) to provide guidelines to LEAs regarding the applicable law on single-sex classes and schools.See
Pub. L. 107-110, Sec. 5131(a)(23), 5131(c).

Elsewhere in this issue of the FederalRegister is a notice of intent to
regulate (NOIR), which invites comment on our intention to amend the current
regulations implementing Title IX of the Education Amendments of 1972 (Title
IX) related to elementary and secondary single-sex classes and schools to provide
more flexibility to educators. The purpose of these amendments would be to support
efforts of school districts to improve educational outcomes for children and
to provide public school parents with a diverse array of educational options
that respond to the educational needs of their children, while at the same time
ensuring appropriate safeguards against discrimination. The NOIR is intended
to begin this process and ensure adequate public input on these important and
sensitive issues.

GUIDELINES ON CURRENT TITLE IX REQUIREMENTS:

Single-sex
classes: The Title IX statute generally prohibits sex-based discrimination
in education programs or activities receiving Federal financial assistance.
Specifically, it states that no person in the United States, on the basis of
sex, can be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
Federal financial assistance. 20 U.S.C. 1681.

Section
1681(a) of Title IX contains two limited exceptions relating to classes or activities
within primary and secondary schools that otherwise are coeducational. Subsection
1681(a)(7)(B) of Title IX exempts any program or activity of any secondary school
or educational institution specifically intended for the promotion of any Boys
State conference, Boys Nation conference, Girls State conference, or Girls Nation
conference or for the selection of students to attend such a conference. Subsection
1681(a)(8) of Title IX states that the law does not preclude father‑son
or mother‑daughter activities at an educational institution. However,
if those activities are provided for students of one sex, opportunities for
reasonably comparable activities must be provided for students of the other
sex. Accordingly, these activities are permitted on a single-sex basis if the
requirements of the statute are met.[1]

A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.

Our regulations
contain two categorical exceptions for specific types of classes or portions
of classes that may be segregated by sex. Those exceptions are: (1) physical
education classes during participation in sports the purpose or major activity
of which involves bodily contact (34 CFR 106.34(c)); and (2) portions of classes
in elementary and secondary schools which deal exclusively with human sexuality.
(34 CFR 106.34(e)). In addition separation of students by sex is permitted if
it constitutes remedial or affirmative action. 34 CFR 106.3[2]

Single-sex schools: The Title IX statute
exempts from its coverage the admissions practices of non-vocational elementary
and secondary schools.[3] Accordingly,
the regulations do not prohibit recipients from adopting single-sex admissions
policies in non-vocational elementary and secondary schools.See 34 CFR
106.15(d). However, the regulations specifically provide that an LEA may exclude
any person from admission to a non-vocational elementary or secondary school
on the basis of sex only if such recipient otherwise makes available to such
person, pursuant to the same policies and criteria of admission, courses, services,
and facilities comparable to each course, service, and facility offered in or
through such schools. (34 CFR 106.35(b))[4]
In other words, under the current regulations, an LEA cannot use a single-sex
admissions policy -- which is not itself subject to Title IX's prohibition --
as the predicate for otherwise causing students, on the basis of sex, to be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance. For example, school districts may not establish a single-sex school
for one sex that provides the district's only performing arts curriculum. Students
of the other sex also must have access to a comparable school with that curriculum.
It has been our longstanding interpretation, policy, and practice to require
that the comparable school must also be single-sex.

An LEA may
offer a single single-sex school if such an action constitutes remedial or affirmative
action. (34 CFR 106.3) In addition,
while the statutory exemption precludes the Department from examining an LEA's
justification for a single-sex school, LEAs also should be aware of constitutional
requirements in this area.[5]
LEAs may be challenged in court litigation on constitutional grounds.

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[1]The
statute also exempts activities of educational institutions controlled by
religious organizations to the extent that the application of Title IX would
be inconsistent with the religious tenets of the organization. 20 U.S.C. 1681(a)(3).

[2] The
current regulations also permit recipients to group students in physical education
classes and activities by ability as assessed by objective standards of individual
performance developed and applied without regard to sex (34 CFR 106.34(b))
and to make requirements based on vocal range or quality which may result
in a chorus or choruses of one or predominantly one sex. (34 CFR 106.34(f))

[3]Section 1681(a)(1)
of Title IX states that in regard to admissions to educational institutions,
the law applies only to institutions of vocational education, professional
education, and graduate higher education, and to public institutions of undergraduate
higher education. As such, non-vocational elementary and secondary schools
are exempt.

[4]These
provisions on single-sex schools do not apply to private elementary and secondary
schools.